Breakingviews - Pro-business Supreme Court has dangerous downside

U.S. Supreme Court Associate Justice Anthony Kennedy arrives to attend the 64th Annual Red Mass at the Cathedral of St. Matthew the Apostle in Washington, U.S., October 2, 2016. REUTERS/Joshua Roberts

WASHINGTON (Reuters Breakingviews) - Businesses will cheer the prospect of another conservative on the Supreme Court, but it has a dangerous downside. U.S. President Donald Trump gets to name a replacement for Anthony Kennedy, who said on Wednesday he will retire from the nine-member panel. It’s Trump’s second pick for the Supreme Court – and it could cause lasting damage.

The absence of Kennedy’s sometimes-swing vote will tilt the court solidly in favor of America’s capitalists. But the Supreme Court may make decisions that go against the interest of companies when it comes to topics like immigration. Justices earlier this week backed Trump’s travel ban on seven mostly Muslim-majority countries, which Apple and other tech companies criticized. Challenges to children being separated from parents at the southwest border could be rejected.

It’s the ugliness of the looming fight over Kennedy’s replacement that is most worrying. There, Democrats are to blame. In 2013, then Senate Majority Leader Harry Reid changed the process so that presidential nominees for posts other than the Supreme Court could be approved with just a simple majority, preventing Republicans from blocking appointments.

Democrats paid the price when a Supreme Court seat opened up in 2016, after the death of conservative Justice Antonin Scalia. Republicans in the majority brushed off then President Barack Obama’s choice of Merrick Garland. Then after Trump was elected, they extended the simple majority rule to Supreme Court judges too, using just 54 of the 100 Senate votes to approve Neil Gorsuch.

The battle to replace Kennedy will be even more vicious, as Republicans have only 51 seats. Moreover, each state has two senators regardless of its population, giving a bigger voice to some sparsely populated conservative regions like North Dakota over populous, liberal-leaning areas like California.

Given the critical role the Supreme Court plays in setting rules on everything from free speech and abortion to gun rights, that will bring to the fore the rancorous divisions between coastal Democrats and inland Republicans. A more pro-business court will have some advantages for investors, but it is likely to have ramifications that go way beyond the law.

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